State same-sex marriage not equal

Guest Opinion

by Leland Traiman

Our community's strategy for achieving the rights of
marriage continues to be successful. The Democratic presidential candidates
have pledged to support "all of the rights of marriage" on a federal
level. However, our community's strategy for achieving same-sex marriage has
not only failed, staggering backlashes have diminished our rights nationwide.
Before we can figure out which direction our community should choose, it is
important to figure out where we have been.

For almost four decades our community has had two different
ways of trying to achieve equality for same-sex couples. One way was to achieve
same-sex marriage; the other way was to achieve the rights of marriage. Mostly,
theses two efforts have had different goals, strategies, and motivations.

The rights of marriage goal was to achieve tangible rights
and benefits. The strategy was working through legislative bodies (city
councils, state legislatures) and pressuring business to offer benefits. The
motivation was seeking equality before the law and equal benefits from
employers. Three states and the District of Columbia now offer some marriage
rights. Six other states (including California) confer all their marriage
rights under the titles domestic partnership or civil union. Thousands of
companies offer benefits to same-sex couples. Backlash has been manageable and
there have been few setbacks to this strategy.

The same-sex marriage goal was to achieve a legal status
labeled marriage. The strategy was filing lawsuits. The motivation was seeking
societal validation of same-sex relationships. Massachusetts is the only state
with same-sex marriage. Massachusetts confers only state marriage rights and no
federal marriage rights. The backlash to the lawsuits: 45 states have passed
laws (19) or constitutional amendments (26) prohibiting same-sex marriage.
Seventeen of those laws or constitutional amendments went further by also
prohibiting civil unions and domestic partnerships. The backlash also brought the
federal Defense of Marriage Act banning federal recognition of same-sex
marriage and banning same-sex couples from attaining federal rights of
marriage.

In December 1999 the two movements were forced together when
the Vermont Supreme Court ruled it was unconstitutional to deny the
"benefits of marriage" to same-sex couples. The court directed the
Legislature to remedy the situation, saying the solution could either be
marriage or a domestic partnership system.

Instead of being overjoyed at winning equality before the
law, the attorneys who filed the lawsuit were dismayed because the court did
not mandate the word "marriage." Vermont civil unions set the
standard for marriage equality without marriage: "Parties to a civil union
shall have all the same benefits, protections, and responsibilities under law
... as are granted to spouses in a marriage."

Many lesbian/gay organizations claim that state-enacted
same-sex marriage is "marriage equality" even though it has no
federal marriage rights. They claim that a federal civil union policy, which
would include these rights, would not be "marriage equality" because
it would not contain the word "marriage." This places rhetoric over
reality. The opposite is true: federal civil unions would be marriage equality.
Unfortunately, no state has the ability to grant federal rights. Therefore, no
state has the ability to grant marriage equality.

A clear majority of voters, about 56 percent, support civil
unions with all the rights of marriage, while opposing same-sex marriage.
Illogical? Yes! But it is a fact we must live with. I am delighted a majority
supports equality before the law. They just want to keep the word for
themselves. Okay, I'll take the rights, they can have the word. Federal civil
unions would grant us 1,138 more rights than "marriage" in
California. Isn't that where we should be putting our energy? That seems a
better choice than a lawsuit, which, if we "win," will guarantee
three things:

1. A name change from domestic partnership to marriage
without any additional rights or benefits,

2. A constitutional amendment on the ballot outlawing both
same-sex marriage and domestic partnerships, which, judging from history, we
will most probably lose, and

3. A diversion of our time, energy, and money from the real
battle of achieving tangible rights through federal civil unions.

Lasting progress is always made step by step. Lawsuits have
been a poor strategy in righting the injustices against same-sex couples. Even
when "successful," these few advances were crushed when 45 states and
the federal government created an entirely new body of anti-gay laws. In
contrast, since 1981 the step-by-step progress of domestic partnerships and
civil unions has given our people tangible benefits, changing lives and
increasing security for our families.

We are at a historic crossroads. Forty-five states have
foreclosed the possibility of same-sex marriage. However, federal civil unions
are within our grasp. It is time for us to work for federal civil unions to get
the federal rights that "are granted to spouses in a marriage." Six
states already have marriage equality through domestic partnerships or civil
unions. A majority of the public supports marriage equality through civil
unions. If we use our energies wisely we can make federal civil unions a
reality thereby achieving national marriage equality.